It can feel frightening if your spouse says they will never agree to a divorce. In Australia, one spouse cannot usually stop a divorce simply because they do not want the marriage to end.
The quick answer is that Australia has no-fault divorce. If the legal requirements are met, you can apply for a divorce even if your spouse refuses to cooperate. The main issues are proving separation, meeting jurisdiction requirements and serving the application properly.
The legal test for divorce
Divorce is governed by the Family Law Act 1975 (Cth). Section 48 provides that the only ground for divorce is that the marriage has broken down irretrievably.
Irretrievable breakdown is shown by separation for at least 12 months and there being no reasonable likelihood of reconciliation. The Court does not decide who caused the separation and does not require both spouses to agree that the marriage should end.
You must also have a connection with Australia. This may be because Australia is your home and you intend to live here indefinitely, because you are an Australian citizen, or because you ordinarily live in Australia and have done so for the required period before filing.
Our separation and divorce service explains how advice can help you check the requirements before filing.
Sole and joint applications
A divorce application can be made jointly by both spouses or solely by one spouse. If your spouse will not cooperate, a sole application is usually the pathway.
In a joint application, both parties sign and participate in the application. In a sole application, one spouse files and must arrange for the other spouse to be served with the documents.
The other spouse can respond if they dispute the divorce, but they cannot stop the divorce simply by refusing to sign. They would need to raise a legally relevant issue, such as whether the parties have been separated for 12 months or whether the Court has jurisdiction.
What if you separated under one roof
Separation does not always mean living in different homes. Some couples are separated under one roof because of children, finances, housing or safety concerns.
If you were separated under one roof for part or all of the 12-month period, extra evidence is usually needed. The Court may need information about sleeping arrangements, finances, household duties, social presentation, communication to family or friends, and the point at which the marriage relationship ended.
This is often where a spouse tries to dispute the divorce. Clear evidence matters. Our article on separation and divorce differences explains why separation is legally important even before divorce is granted.
Serving the divorce application
If you file a sole application, your spouse must be served. Service is the formal process of giving them the documents in a way recognised by the Court.
You cannot personally serve your spouse yourself. Another adult, a process server or another approved method may be used. The rules about service depend on whether your spouse is in Australia or overseas.
If your spouse avoids service, there may still be options. Depending on the evidence, you may be able to ask the Court for substituted service, which allows service another way, or dispensation of service, which removes the requirement in limited circumstances.
What if you cannot find your spouse
If you do not know where your spouse is, you should keep evidence of the steps taken to locate them. This may include contacting known relatives or friends, searching records, checking email or social media, and attempting last known addresses where appropriate.
The Court will not dispense with service lightly. It will want to know what attempts were made and why ordinary service is not possible.
Legal advice can help you decide whether to keep searching, use a process server, apply for substituted service or apply for dispensation of service.
What divorce does not decide
A divorce order legally ends the marriage. It does not decide parenting arrangements, property settlement, spousal maintenance or child support.
Those issues can be dealt with before, during or after the divorce process. However, divorce can start important time limits. For married couples, property settlement and spousal maintenance applications generally need to be filed within 12 months after a divorce order takes effect, unless leave is granted.
This is why it is often risky to treat divorce as the only task. If property or financial support is unresolved, get advice before the time limit becomes a problem.
Attendance at Court
Divorce hearings are commonly conducted electronically. The Federal Circuit and Family Court of Australia has changed attendance requirements so that divorcing parties have the same attendance requirements regardless of whether the application is sole or joint and regardless of whether there are children under 18.
Even if attendance is not required, the Court still needs the application to be properly prepared. Problems with service, jurisdiction, children under 18 or separation under one roof can cause delays.
What if there are children under 18
If there are children under 18, the Court must be satisfied that proper arrangements have been made for them, or that there are special circumstances. This does not mean parenting issues need to be fully resolved before divorce.
The Court may ask about where the children live, schooling, health, financial support and contact with each parent. If parenting arrangements are disputed, you can still apply for divorce, but the application should answer the child-arrangements questions carefully.
Parenting orders are separate from divorce. If children are being withheld, there are safety concerns, or communication has broken down, get advice about parenting arrangements rather than relying on the divorce application to solve those issues.
What if your spouse says reconciliation is possible
A spouse may say they do not accept the marriage is over. The Court looks at whether the legal test is met. If one party regards the marriage as ended and there has been 12 months separation with no reasonable likelihood of reconciliation, the other party’s objection may not prevent the divorce.
Evidence is important if the separation date is disputed. Keep records showing when the relationship ended and how the parties lived after that date.
When the divorce takes effect
A divorce order does not end the marriage immediately on the day it is made. It usually becomes final one month and one day after the order is made, unless the Court shortens that period.
This date matters if either person wants to remarry. It also matters because the 12-month time limit for married couples to start property settlement or spousal maintenance proceedings usually runs from when the divorce order takes effect.
The next step
If your spouse refuses to cooperate, the goal is not to argue them into agreement. The goal is to prepare a proper application, prove the requirements and deal with service.